King Lifting Ltd v Oxfordshire County Council

The statutory duty to maintain a highway is absolute, but its application depends on the purpose and character of the relevant part of the highway. A grass verge forms part of the highway in appropriate circumstances, yet it need not be capable of supporting every vehicle that may drive onto it. The claimant must establish a dangerous defect at the accident location. The statutory defence is available where the highway authority proves that it took the care reasonably required in all the circumstances. The absence of detailed inspection records is not, by itself, fatal to that defence. At common law, a highway authority is not generally liable for failure to maintain the highway, but may be liable where a positive act creates a new danger or a trap for careful users.

The claimant’s crane left Woodeaton Road and toppled into an adjoining brook. It alleged that the carriageway edge collapsed because of a failure by the highway authority to maintain the road under Highways Act 1980, and that the authority was negligent in its inspections, maintenance and temporary traffic management. The authority relied on the statutory defence and alleged that the crane driver drove onto the soft verge. The court determined the cause of the accident, whether the carriageway or verge was defective, whether the statutory defence applied, and whether the traffic-management arrangements created common-law liability.

1. The claim and counterclaim were determined in favour of the council. On the balance of probabilities, the crane driver drove the crane’s nearside wheels onto the grass verge while manoeuvring past stationary traffic. The tyre marks, the physical evidence and the driver’s concessions supported that conclusion. The damaged carriageway edge was caused during the toppling of the crane, not by a pre-existing collapse.

2. The duty under section 41 of the Highways Act 1980 is an absolute duty measured by an objective standard. A verge may form part of the highway, but a different standard ordinarily applies to a verge than to the carriageway. The function of the verge was to support the carriageway, not to provide a safety buffer for overrunning vehicles or to support the weight of heavy vehicles. The verge was therefore in a proper condition for its purpose and no dangerous defect was proved at the accident location.

3. Even if the alleged carriageway defect had been established, the council would have succeeded under section 58. It had carried out appropriate inspections, identified and protected the separate eroded section, and arranged the necessary works. The lack of detailed documentation did not itself prevent reliance on the defence.

4. The council was not liable in common-law negligence. The temporary traffic-management system was reasonably safe and complied with the relevant code of practice. White lines, marker posts, barriers or warning signs might have highlighted the road edge, but their absence was not negligent in the circumstances. The council had not created a new danger, and the accident was caused by the driver’s negligent decision to drive onto the verge.